**_______________________________**

**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

**FILED MAY 3, 2005 SCOTT M. CAIN,**  **Plaintiff-Appellee,**

**v No. 125111**  **AFTER REMAND WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,**  **Defendants-Appellants, and**  **SECOND INJURY FUND, Defendant-Appellee.** 

**SCOTT M. CAIN, Plaintiff-Appellee,** 

**v No. 125180**  **AFTER REMAND WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,**  **Defendants-Appellees, and**  **SECOND INJURY FUND, Defendant-Appellant.** **AFTER REMAND**
**BEFORE THE ENTIRE BENCH**
**TAYLOR C.J. At issue in this worker’s compensation case is whether**  **a worker must suffer an actual amputation of a limb or body part in order to qualify for either specific loss benefits**  **(also described as scheduled loss benefits) or total and permanent disability benefits. We hold that specific loss**  **benefits under MCL 418.361(2) do not require an amputation. It is sufficient to qualify for such benefits if the limb**  **or body part has lost its usefulness. Regarding total and permanent disability benefits under MCL 418.361(3)(b),**  **which covers the loss of both legs, as with specific loss, if the legs have lost their usefulness, even though not**  **amputated, the worker qualifies for total and permanent disability benefits. We therefore affirm the decisions of**  **the Court of Appeals and the Worker’s Compensation Appellate Commission (WCAC).** 
**BACKGROUND This case was previously before us in**  Cain v Waste Mgt, Inc **, 465 Mich 509, 513; 638 NW2d 98 (2002) (** Cain I **), where we summarized the facts describing plaintiff’s**  **injuries as follows: Plaintiff Scott M. Cain worked as a truck**  **driver and trash collector for defendant, Waste Management, Inc. In October 1988, as he was**  2**standing behind his vehicle emptying a rubbish container, he was struck by an automobile that**  **crashed into the back of the truck. Mr. Cain’s legs were crushed. Physicians amputated Mr.**  **Cain’s right leg above the knee. His left leg was saved with extensive surgery and bracing.**  **In February 1990, Mr. Cain was fitted with a right leg prosthesis, and he was able to begin**  **walking. He returned to his employment at Waste Management and started performing clerical**  **duties. Mr. Cain’s left leg continued to**  **deteriorate. In October 1990, he suffered a distal tibia fracture. Doctors diagnosed it as a**  **stress fracture caused by preexisting weakness from the injury sustained in the accident. After**  **extensive physical therapy and further surgery on his left knee, Mr. Cain was able to return to**  **Waste Management in August 1991, first working as a dispatcher and then in the sales department.**  **Waste Management voluntarily paid Mr. Cain 215 weeks of worker’s compensation benefits for**  **the specific loss of h is right leg. MCL**  **418.361(2)(k). However, there was disagreement concerning whether he was entitled to additional**  **benefits. To understand the benefits that are at issue, it is**  **necessary to review several sections of the Worker’s Disability Compensation Act (WDCA), MCL 418.101**  et seq **. Specific loss benefits are payable under MCL 418.361(2)(k)**  **to an employee “for the loss of” a leg. 1**  **Total and**

**1 The full text of MCL 418.361(2) reads:**  **In cases included in the following schedule, the disability in each case shall be considered**  **to continue for the period specified, and the compensation paid for the personal injury shall**  **be 80% of the after-tax average weekly wage (continued...)**  3**(...continued) subject to the maximum and minimum rates of**  **compensation under this act for the loss of the following:**  **(a) Thumb, 65 weeks.**  **(b) First finger, 38 weeks.**  **(c) Second finger, 33 weeks.**  **(d) Third finger, 22 weeks.**  **(e) Fourth finger, 16 weeks.**  **The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal**  **to the loss of 1⁄2 of that thumb or finger, and compensation shall be 1⁄2 of the amount above**  **specified. The loss of more than 1 phalange shall be**  **considered as the loss of the entire finger or thumb. The amount received for more than 1 finger**  **shall not exceed the amount provided in this schedule for the loss of a hand.**  **(f) Great toe, 33 weeks.**  **(g) A toe other than the great toe, 11**  **weeks. The loss of the first phalange of any toe**  **shall be considered to be equal to the loss of 1⁄2 of that toe, and compensation shall be 1⁄2 of the**  **amount above specified. The loss of more than 1 phalange shall be**  **considered as the loss of the entire toe. (h)**  **Hand, 215 weeks. (i)**  **Arm, 269 weeks. An amputation between the elbow and wrist**  **that is 6 or more inches below the elbow shall be considered a hand, and an amputation above that**  **point shall be considered an arm. (continued...)**  4**permanent disability benefits are payable “[w]hile the incapacity for work resulting from a personal injury is**  **total,” MCL 418.351(1), and MCL 418.361(3) defines what “total and permanent disability” means.**  **2 Of particular** 

**(...continued) (j)**  **Foot, 162 weeks. (k)**  **Leg, 215 weeks. An amputation between the knee and foot 7 or**  **more inches below the tibial table (plateau) shall be considered a foot, and an amputation**  **above that point shall be considered a leg. (l)**  **Eye, 162 weeks. Eighty percent loss of vision of 1 eye shall**  **constitute the total loss of that eye.**

**2 The subsection reads in full:**  **Total and permanent disability, compensation for which is provided in section 351 means:**  **(a) Total and permanent loss of sight of**  **both eyes. (b)**  **Loss of both legs or both feet at or above the ankle.**  **(c) Loss of both arms or both hands at or**  **above the wrist. (d)**  **Loss of any 2 of the members or faculties in subdivisions (a), (b), or (c).**  **(e) Permanent and complete paralysis of both**  **legs or both arms or of 1 leg and 1 arm. (f)**  **Incurable insanity or imbecility. (g)**  **Permanent and total loss of industrial use of both legs or both hands or both arms or 1**  **leg and 1 arm; for the purpose of this (continued...)**  5**relevance here are two of the definitions of total and permanent disability found in MCL 418.361(3)(b), “Loss of**  **both legs or both feet at or above the ankle,” and MCL 418.361(3)(g), “Permanent and total loss of industrial use**  **of both legs or both hands or both arms or 1 leg and 1 arm**

**. . . .”**

**In** Cain I **, we determined that because Mr. Cain had a brace on his left leg that enabled him to return to work,**  **he had not lost industrial use of both legs, as required by MCL 418.361(3)(g).**  **3 We noted there is a difference between**  **specific loss and loss of industrial use, and we “adopt[ed] as our own” the analysis of the WCAC in its April 1997**  **opinion.** Cain I, supra **at 521. In accord with that analysis, we held that the “corrected” standard applies to**  **claims for permanent and total loss of industrial use under MCL 418.361(3)(g), and we remanded to the WCAC “to consider**  **plaintiff’s specific loss claim.”** Cain I, supra **at 524. On remand, the WCAC determined actual amputation is**  **unnecessary to qualify for specific loss benefits and,**

**(...continued) subdivision such permanency shall be determined**  **not less than 30 days before the expiration of 500 weeks from the date of injury.** 

**3 The reader is directed to**  Cain I **for a full discussion of the procedural history of the case to that**  **(continued...)**

6**because plaintiff’s leg is essentially useless, his injury “equated with anatomical loss.” The WCAC cited as**  **authority** Hutsko v Chrysler Corp **, 381 Mich 99; 158 NW2d 874 (1968), and**  Tew v Hillsdale Tool & Mfg Co **, 142 Mich App 29; 369 NW2d 254 (1985). Both are cases in which specific loss**  **claims were allowed where there had been a loss of use, but not an anatomical loss. The WCAC then concluded without**  **further explanation that “[h]aving shown specific loss of each leg, plaintiff is entitled to total and permanent**  **disability benefits.” On appeal, the Court of Appeals majority, citing**  Pipe v Leese Tool & Die Co **, 410 Mich 510; 302 NW2d 526 (1981), affirmed the decision of the WCAC.**  **259 Mich App 350; 674 NW2d 383 (2003). It concluded that each of plaintiff’s legs qualified for specific loss**  **benefits (one through amputation and one through lost industrial use), and that these losses, when considered**  **together, equaled**  **a “loss**  **of both**  **legs” under**  **MCL 418.361(3)(b),**  **thus entitling plaintiff**  **to total**  **and permanent disability benefits.**  **Both the defendant employer and the Second Injury Fund sought leave to appeal. We granted both applications for**  **leave, ordering the appeals to be argued and submitted**

**(...continued) point, including details of the opinions of the magistrate,**  **the WCAC, and the Court of Appeals.**

7**together. 470 Mich 870 (2004). We directed the parties in both appeals to include among the issues to be briefed**  **whether the “loss of industrial use” standard may be applied to claims of specific loss under MCL 418.361(2) and**  **whether** Pipe, supra **, should be overruled. We further directed the parties in Docket No. 125180 to address the**  **issues whether the WCAC exceeded the scope of this Court’s remand order by awarding plaintiff total and permanent**  **disability benefits and whether total and permanent disability benefits under MCL 418.361(3)(b)(loss of both**  **legs) may be awarded on the basis of plaintiff’s specific (anatomical) loss of one leg and his specific (industrial**  **use) loss of the other leg.**
**STANDARD OF REVIEW We review de novo questions of law in worker’s**  **compensation cases.** Mudel v Great Atlantic & Pacific Tea

Co **, 462 Mich 691, 697 n 3; 614 NW2d 607 (2000). Entitlement to worker’s compensation benefits must be**  **determined by reference to the statutory language creating those benefits.**  Nulf v Browne-Morse Co **, 402 Mich 309, 312; 262 NW2d 664 (1978). As we have noted in the past, when we**  **construe a statute, our primary goal is to give effect to the intent of the Legislature and our first step in that**  **process is to review the language of the statute itself.** In re MCI Telecom Complaint **, 460 Mich 396, 411; 596 NW2d** 8**164 (1999). The Legislature has specified the proper approach to construing statutory**  **language, saying in MCL 8.3a:**  **All words and phrases shall be construed and understood according to the common and approved**  **usage of the language; but technical words and phrases, and such as may have acquired a peculiar**  **and appropriate meaning in the law, shall be construed and understood according to such**  **peculiar and appropriate meaning. [4]** 

**ANALYSIS: SPECIFIC LOSS We turn first to the question of specific loss and**  **therefore focus our analysis on MCL 418.361(2). The loss provision of this section repeatedly has been held to be**  **intended to compensate workers who have suffered one of the losses enumerated in this provision, regardless of the**  **effect on the worker’s earning capacity. 5**  Cain I, supra **at 524;**  Redfern v Sparks-Withington Co **, 403 Mich 63, 80-81; 268 NW2d 28 (1978). This means if a worker, for example,**  **loses an arm, thumb, finger, leg, or so on in a workplace**

4 **However, when a statute specifically defines a given term, that definition alone controls.**  WS Butterfield Theatres, Inc v Dep’t of Revenue **, 353 Mich 345; 91 NW2d 269 (1958).** 

**5 We note that MCL 418.354(16), in providing for**  **coordination of social security and other benefits, recognizes this principle, stating in part, “It is the**  **intent of the legislature that, because benefits under section 361(2) and (3) are benefits which recognize human**  **factors substantially in addition to the wage loss concept, coordination of benefits should**  **not apply to such benefits.”** 

9**injury, specific loss benefits, as set forth in the schedule, will be awarded even if no time is missed from**  **work. At issue here is whether a limb (here, a leg), crushed but not severed, is to be treated as lost, thus**  **entitling the injured worker to specific loss benefits. Defendants argue that the word “loss” unambiguously**  **means “amputation,” especially in the context of § 361(2)(k), which expressly mentions**  **amputation. As they argue it, amputation is required because MCL 418.361(2)(k)**  **provides benefits for the loss of a leg by stating: Leg, 215 weeks.**  **An amputation between the knee and foot 7 or more inches below the tibial table**  **(plateau) shall be considered a foot, and an amputation above that point shall be**  **considered a leg. Thus, defendants assert that the amputation language,**  **at least regarding legs, limits the word “loss” in the statute to mean that only amputations are compensable.**  **Plaintiff, on the other hand, while agreeing that the statute is unambiguous, argues that defendants’ approach is**  **flawed because it disregards the original meaning of the specific loss provisions when the WDCA was enacted almost a**  **century ago in favor of a modern perception of the word’s meaning. The original meaning, plaintiff asserts, is**  **controlling because, although the statute has been amended many times since its enactment in 1912, the word “loss” has**  10**remained unchanged and without express qualifications or limitations. Plaintiff analogizes our task in determining**  **the meaning of “loss” to that which we undertook in** Title Office, Inc v Van Buren Co Treasurer, **469 Mich 516, 522; 676 NW2d 207 (2004), where we determined what the plain and**  **ordinary meaning of “transcript” was in 1895. This analytical approach of plaintiff is sound. Because the**  **statute itself does not define “loss,” we agree with plaintiff that we must ascertain the original meaning the**  **word “loss” had when the statute was enacted in 1912. “When determining the common, ordina**  **ry meaning of a word or phrase, consulting a dictionary is appropriate.”**  Title Office, Inc, supra **at 522. In the dictionaries from the era of the original legislation, the definition of**  **“loss” is fairly broad: “Perdition, ruin, destruction; the condition or fact of being ‘lost,’ destroyed, or ruined,”**  New English Dictionary **(1908); “State or fact of being lost or destroyed; ruin; destruction; perdition; as**  Loss **of a vessel at sea,”**  Webster’s New Int’l Dictionary of the English Language **(1921); “Failure to hold, keep, or preserve what one has had in his possession; disappearance**  **from possession, use, or knowledge; deprivation of that which one has had: as, the**  loss **of money by gaming,** loss **of health or reputation,**  loss **of children: opposed to** gain **,”** Century Dictionary and Cylopedia **(1911). From this we can** 11**see that severance is but one way a loss may occur; loss also occurs when something is destroyed, ruined, or when it**  **disappears from use. We conclude that amputation is not required in order for a person to have suffered the loss of**  **a specified body part. Having ascertained the commonly understood meaning of**  **the word “loss,” our substantive analysis of its definition is complete.**  Gladych v New Family Homes, Inc **, 468 Mich 594, 597; 664 NW2d 705 (2003). Our conclusion is**  **reinforced by the fact that the same meaning for the word “loss” is found in the cases construing late nineteenth**  **century private liability insurance plans for the aid of injured workers that were, in part, the models for the**  **body-part loss provisions of our first worker’s compensation act. When, in special session, the**  **Legislature in 1912 passed that first act, known as Michigan’s “Workmen’s Compensation Act,”**  **6 it was the**  **culmination of the efforts of the five-person Employers’**  **Liability and Workmen’s Compensation Commission appointed by Governor Chase S. Osborn in 1911.**  **7 The commission had**  **been formed because of what was described at the time as**

**6 1912 (1st Ex Sess) PA 10.** 

**7 1911 PA 245.** 

12**“wide dissatisfaction” with the employer’s liability at common law for injuries suffered by his employees. Report**  **of the Employers’ Liability and Workmen’s Compensation Commission of the State of Michigan, 5 (1911) (Report).**  **The commission was directed to “investigate and report a plan for legislative action to provide compensation for**  **accidental injuries or death arising out of and in the course of employment . . . .”**  Id **. In its report, the commission, after concluding that the existing negligence**  **based system (1) failed to sufficiently encourage prevention of accidents, (2) did not protect employers**  **against excessive verdicts, (3) resulted in inadequate compensation for injured workers, and (4) engendered**  **animosity and strife, recommended a statute based on similar provisions already enacted in Massachusetts,**  **Wisconsin, and New Jersey. 8**  **The Legislature, with very few**

**8 These in turn were modeled after European laws that**  **first appeared in the mid-1800s and that were well established by the end of that century, swept along by**  **massive industrialization occurring at the same time throughout Europe. Harger,**  Worker’s compensation, a brief history **, <www.fldfs.com/WC/history.html> (accessed December 22, 2004). In this country, the first constitutional**  **worker’s compensation law was the 1908 Employer’s Liability Acts, 45 USC 51-60. In 1911, the first states followed,**  **and by 1913, twenty-three states had comparable laws. Harger,**  supra **. By 1948, all the states had at least some form of worker’s compensation, including the territories of**  **Alaska and Hawaii. Harger,** supra **.** 13**changes to the recommended language, briskly enacted this proposal as Michigan’s workmen’s compensation act less than**  **three weeks after the bill was introduced. 1912 (1st Ex Sess) Journal of the House 13, 149-150.**  **In dealing with what today is described as total and permanent disability, the 1912 statute stated in § 9:**  **While the incapacity for work resulting from the injury is total, the employer shall pay, or**  **cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to**  **one-half his average weekly wages, but not more than ten dollars nor less than four dollars a**  **week; and in no case shall the period covered by such compensation be greater than five hundred**  **weeks, nor shall the total amount of all compensation exceed four thousand dollars. [1912**  **(1st Ex Sess) PA 10, part II, § 9.] In dealing with partial incapacity, the statute stated**  **at § 10:**

**While the incapacity for work resulting from the injury is partial, the employer shall pay, or**  **cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to**  **one-half the difference between his average weekly wages before the inju**  **ry and the average weekly wages which he is able to earn thereafter,**  **but not more than ten dollars a week; and in no case shall the period covered by such**  **compensation be greater than three hundred weeks from the date of the injury. In cases included by**  **the following schedule the disability in each such case shall be deemed to continue for the**  **period specified, and the compensation so paid for such injury shall be as specified therein, to**  **wit:**
*** * ***

14**For the loss of a leg, fifty per centum of average weekly wages during one hundred and**  **seventy-five weeks. [1912 (1st Ex Sess) PA 10, part II, § 10.]**  **Section 9 allowed wage-based benefits to be paid to workers who were totally incapacitated from work,**  **regardless of the type of work-related injury that caused the incapacity, while § 10 provided for benefits when the**  **worker was partially incapacitated. Moreover, the latter part of § 10, with its schedule of benefits for specific**  **losses, allowed a set amount of weeks that benefits would be awarded when a worker suffered one of the specific**  **injuries described. In doing so, it was intentionally patterned after the specific loss provisions of the above**  **referenced employers’ private liability insurance plans, which were designed to provide benefits to workers injured**  **on the job. Report,** supra **. 9** 

**9 The commission’s report even included in its appendix**  **the text of two plans “typical” at the time. Report,** supra **, Appendix VII, 143-146. The “Benefit and Relief Plans of the Cleveland-Cliffs Iron Company” provided:**  **In addition to the monthly benefit payments, other amounts are paid for certain serious injuries, as follows:**  **Loss of one arm, leg or eye, $166.66. Loss of both arms, legs or eyes, $500.**  **Similarly, the “Benefit and Relief Plans of the Oliver Iron Mining Company” provided:**  **(continued...)** 15**The cases construing such insurance policies in that era, from Michigan and elsewhere, unmistakably indicate**  **that the word “loss,” just as it did in dictionaries of the time, meant not just severance or amputation but also the**  **destruction of the usefulness of the member. In Michigan, our Court in**  Fuller v Locomotive Engineers’ Mut Life & Accident Ins Ass’n **, 122 Mich 548, 553; 81 NW 326 (1899), construing the specific loss provision in an insurance**  **policy, said just this, indicating that where an insurance policy insures against the**  **loss of a member, or the loss of an entire member, the word “loss” should be construed to**  **mean the destruction of the usefulness of the member, or the entire member, for the purposes to**  **which, in its normal condition, it was susceptible of application** 

.

**(...continued) The following injuries have specified amounts, and**  **others in proportion to these injuries: (a)**  **For the loss of a hand, twelve months’ wages. (b)**  **For the loss of an arm, eighteen months’ wages. (c)**  **For the loss of a foot, nine months’ wages. (d)**  **For the loss of a leg, twelve months’ wages. (e)**  **For the loss of one eye, six months’ wages. Sections 9 and 10 of the 1912 act incorporated**  **language similar to these insurance plans.**

16**Simply stated, under such a policy in Michigan, no amputation was necessary for a loss. The rationale for not**  **limiting loss just to amputation was the understanding by this Court and, as we will explain, by other American**  **courts that the term “loss” in such policies should be given its ordinary and popular meaning, which was broad**  **enough to include loss of usefulness. As the Missouri Supreme Court said on this topic, the**  **word “loss” in insurance policies “was used in its ordinary and popular sense and [did] not mean that there should be a**  **total destruction of the [member], anatomically speaking, but that the loss of the use of it for the purposes to**  **which [the member] is adapted would be a loss of it**

**. . . .”** Sisson v Supreme Court of Honor **, 104 Mo App 54, 60; 78 SW 297 (1904). The Kansas Supreme Court stated it**  **similarly: “The loss of a member of the body, as used in an accident insurance policy, unless restricted or modified by**  **other language, carries the common meaning of the term ‘loss,’ which is the loss of the beneficial use of the**  **member. Obviously this may occur when there is not a complete severance of the member from the body.”**  Noel v Continental Cas Co **, 138 Kan 136, 139; 23 P2d 610 (1933). The Kansas court then reinforced its holding by citing**  **thirteen cases from ten other states from the late**

17**nineteenth and early twentieth centuries, holding to the same effect.**  **10 Also buttressing our analysis is that, in the early**  **years of the act’s existence, the decisions of the Industrial Accident Board (IAB), the WCAC’s predecessor,**  **also construed “loss” as defined in the dictionary. That is consistent with its commonly understood meaning. This**  **is consequential because half of the four IAB board members had served on Governor Osborn’s commission and had**  **recommended the very “loss” language we are considering. 11**  **We find the interpretation these board members gave to the statute useful in the same way that the comments of** 

**10** Travelers’ Ins Co v Richmond **, 284 SW 698 (Tex Civ App, 1926);**  Continental Cas Co v Linn **, 226 Ky 328; 10 SW2d 1079 (1928);**  Jones v Continental Cas Co **, 189 Iowa 678; 179 NW 203 (1920);**  Locomotive Engineers’ Mut Life & Accident Ins Co v Meeks **, 157 Miss 97; 127 So 699 (1930);** Moore v Aetna Life Ins Co **, 75 Or 47; 146 P 151 (1915);** Bowling v Life Ins Co of Virginia **, 39 Ohio App 491; 177 NE 531 (1930);**  Citizens’ Mut Life Ass’n v Kennedy **, 57 SW2d 265 (Tex Civ App, 1933);**  Sneck v Travelers’ Ins Co **, 88 Hun 94; 34 NYS 545 (1895);**  Sheanon v Pacific Mut Life Ins Co **, 77 Wis 618; 46 NW 799 (1890);**  Lord v American Mut Accident Ass’n **, 89 Wis 19; 61 NW 293 (1894);** Berset v New York Life Ins Co **, 175 Minn 210; 220 NW 561 (1928);** Sisson v Supreme Court of Honor **, 104 Mo App 54; 78 SW 297 (1904);** Int’l Travelers’ Ass’n v Rogers **, 163 SW 421 (Tex Civ App, 1914).**

**11 Richard L. Drake was its first secretary and Ora E.**  **Reaves was one of three board commissioners. Reaves remained on the board until at least 1920. Michigan**  **Official Directory and Legislative Manual, 1913-1914, 1915­ 1916, 1917-1918, and 1919-1920.** 

18**drafting committees can be “useful interpretive aids” for construing statutes. See**  Gladych, supra **at 601 n 4. The IAB, in**  Lardie v Grand Rapids Show Case Co **, 1916 Workmen’s Compensation Cases 17, 19, in discussing loss, stated that**  **“courts have uniformly construed provisions of accident policies insuring against the loss of a member, to cover**  **cases where the usefulness of the member was destroyed by accident without resulting in severance or amputation.”**  Id **., citing** Fuller, supra **at 553. Similarly, that “loss” in the context of worker’s compensation specific loss**  **benefits did not mean only amputations, but also included loss of usefulness, was indicated by the IAB’s decisions in**  **an unnamed case cited in Industrial Accident Bd, Bulletin No 3, 13 (1913);**  **12** Rider v C H Little Co **, Industrial**

**12 The board stated in that case:**  **The action of the sur geon in amputating a**  **finger, or in failing to amputate it, or in choosing the point of amputation is not**  **controlling in all cases of this kind. Each case depends for its decision upon the particular**  **facts relating to the finger, and these might relate to the point of amputation, or the fact**  **that the finger or a portion thereof had been rendered useless without being amputated. . . .**  **The Board is further of the opinion that in case no part of the finger is amputated and the injury**  **is such as to entirely destroy the usefulness of the first phalange or the entire finger, in that**  **event the injured person has lost the first phalange or the finger, as the case may be, as**  **completely as if the same had been amputated.**

19**Accident Bd,** supra **at 27, 29 (1913);** Hirschkorn v Fiege Desk Co **, 184 Mich 239; 150 NW 851 (1915);** Purdy v Sault Ste Marie **, 188 Mich 573, 579; 155 NW 597 (1915);** Cline v Studebaker Corp **, 189 Mich 514; 155 NW 519 (1915);** Lardie,

supra **;** Carpenter v Detroit Forging Co **, 191 Mich 45; 157 NW 374 (1916);**  Packer v Olds Motor Works **, 195 Mich 497; 162 NW 80 (1917);**  Adomites v Royal Furniture Co **, 196 Mich 498; 162 NW 965 (1917).**  **The same can be seen in large part in this Court’s jurisprudence of the time. For example, in**  Purdy, supra **at 579, the Court affirmed the IAB’s specific loss award for a**  **crushed leg. 13**  **In** Lovalo v Michigan Stamping Co **, 202 Mich 85, 89; 167 NW 904 (1918), the Court held that the claimant**  **had suffered the loss of his hand where four fingers and nearly all the palm were amputated, saying that “the loss**  **of all the palm and all of the fingers of the hand could . . . be reasonably considered the loss of the entire**  **hand.” Indeed, the only expressly contrary case in this era is**  Wilcox v Clarage Foundry & Mfg Co **, 199 Mich 79; 165 NW 925 (1917), where the Court, in a case with difficult**  **facts, determined that the specific loss provision required anatomical loss. The**  Wilcox **Court made no effort to**

**13 The IAB’s decision is at 1916 Workmen’s Compensation**  **Cases 65.**

20**reconcile its holding with the IAB’s clearly stated understanding of “loss,” nor with**  Fuller **or** Purdy **, but analogized instead to cases where the plaintiffs had**  **suffered partial losses and this Court had required proof of**  complete **, rather than** partial **, loss. 14**  **We conclude that, given its outlier status, as well as the fact that the**  **construction it seeks to give to the term “loss” is inconsistent with the original meaning of “loss” in the**  **act,** Wilcox **was incorrectly decided. Thus, we overrule** Wilcox **so that its potentially confusing shadow will be removed from our case law.**  **15 To summarize, then, regarding this issue of the**  **definition of “loss”: the definition comes from its commonly understood meaning at the time of enactment. The**  **contemporaneous uses of the word are corroborative and reinforcing of this definition.** 

**14 Even if those cases can**  **be read as requiring amputation,**  Wilcox **was flawed in a broader sense by the fact that, rather than tracing its rationale to the act**  **itself, it used as a template, as one might in a common-law case, the prior cases construing the act.** 

**15 We are reinforced in our notion that**  Wilcox **is aberrant by the fact that the**  Lovalo **Court, in reaching a holding contrary to**  Wilcox **just one year later, left unaddressed the continuing strength of**  Wilcox **, suggesting that the Court considered it confined to its facts.** 

21**Defendants assert that, even given this conclusion, the 1927 amendments forever altered the definition of**  **“loss.” In 1927, the Legislature, for the only time in the twentieth century, consequentially amended the specific**  **loss section of the statute by adding to the provision regarding a leg the language: “An amputation between the**  **knee and foot six or more inches below the knee shall be considered a foot, above this point a leg[.]”**  **16 1927 PA 63.**  **Keying off of this amendment, defendants urge that this language implicitly was designed**  **to alter any previously broad understanding of the word “loss” so that after the**  **amendment there could be no specific loss without an amputation. We think this explanation insufficiently**  **appreciates that the amendment came in the wake of a series of cases where this Court had made debatable calls on the**  **nature of the loss after an amputation. 17**  **That is, at what**

**16 Similarly, the amendment added to the provision for**  **an arm, “An amputation between the elbow and wrist 6 or more inches below the elbow shall be considered a hand,**  **above this point an arm.”**

**17** Stocin v C R Wilson Body Co **, 205 Mich 1; 171 NW 352 (1919) (holding that a claimant had lost his arm, not just**  **his hand, where it was severed below the elbow and the upper arm was atrophied),**  Curtis v Hayes Wheel Co **, 211 Mich 260; 178 NW 675 (1920) (holding that the claimant had lost**  **just a foot where his amputation occurred four to five inches below the knee), and**  Reno v Holmes **, 238 Mich 572; 214 NW 174 (1927) (holding that a claimant had lost his**  **(continued...)** 22**point on the limb had a loss become not just of a hand but of an arm, not just of a foot but of a leg? We believe the**  **goal of the amendment was to bring certainty to this discrete set of determinations once there was an**  **amputation. It is hard to conclude otherwise, given that the Legislature, in its amendment, did not expressly alter**  **or redefine the word “loss” itself and especially given that word’s quite clear meaning in the dictionaries of the**  **time as well as the above-referenced decisions of the IAB and this Court. Moreover, this Court’s leading**  **postamendment decision in the 1930s on the issue of loss**  **18 is consistent with this understanding that the 1927**  **amendment was not intended to reverse the holdings of the IAB and this Court on what is a loss.**  **This dominant theme of our case law, that loss does not require amputation, can be seen throughout the mid**  **century, albeit with some false starts. 19**  **Later in the**

**(...continued) leg, not just his foot, where it was severed 51⁄2 inches**  **below the knee).**

**18 See**  Rench v Kalamazoo Stove & Furnace Co **, 286 Mich 314; 282 NW 162 (1938), where the Court allowed an award**  **for loss of two hands where most of the plaintiff’s fingers had been severed and he had suffered a total loss of use of**  **both his hands.**

**19 In the middle of the century, with**  Hlady v Wolverine Bolt Co **, 325 Mich 23; 37 NW2d 576 (1949), as well as** Utter **(continued...)** 23**century, in** Pipe v Leese Tool & Die Co **, 410 Mich 510; 302 NW2d 526 (1981), the Court correctly determined, consistent**  **with the original understanding of the act and the earlier cases we have discussed, that amputation was not a**  **prerequisite to a “loss.”** Pipe **, however, in a phrase used frequently in these cases, described this loss of usefulness as**  “ **loss of the industrial use . . . .”**  Id **. at 527. The phrase “loss of industrial use” does not appear anywhere in the specific**  **loss provisions, and seems to have been intended as judicial shorthand to describe the condition of the injured**  **member from the standpoint of its use in employment. However, this description causes confusion because it does**  **not adequately capture the proper standard, which is that specific loss is to be determined without reference to the**  **plaintiff’s earning capacity or ability to return to work. That is, it is paid if the loss has been incurred and it is**  **not relevant whether the worker can work after the loss.**

**(...continued)** v Ottawa Metal Co **, 326 Mich 450; 40 NW2d 218 (1949), and** Barnett v Kelsey-Hayes Wheel Co **, 328 Mich 37; 43 NW2d 55 (1950), this Court decided cases contrary to this original**  **understanding of the specific loss provisions. But these cases are inconsistent with the proper understanding of the**  **statute and we note that they were hesitatingly followed, if at all, and**  Hlady was **expressly overruled.** Mitchell v Metal Assemblies, Inc **, 379 Mich 368, 380; 151 NW2d 818 (1967).** 

24Miller v Sullivan Milk Products, Inc **, 385 Mich 659; 189 NW2d 304 (1971);**  Shumate v American Stamping Co **, 357 Mich 689; 99 NW2d 374 (1959). We believe it was this concept**  **that the** Pipe **Court was attempting to articulate and we clarify by means of this opinion that holding.**  **To be clear, we are endeavoring here not to craft a new standard, but to articulate clearly the standard**  **enacted in 1912. We find that the original understanding the word “loss” carried when the WDCA was enacted was its**  **plain and ordinary meaning, consistent with how it had been construed in the context of insurance law. Thus, “loss”**  **includes not only amputation but also loss of usefulness. 20**  **It was the intent of the drafters to write into the statute a word that was expansive enough to cover both situations**  **and the words and language they chose conveyed this. Moreover, in our case law, this Court has with considerable**  **consistency, albeit not unfailingly, upheld this construction. We do so again today, believing as courts**  **have before us that the meaning we give to the word “loss” in MCL 418.361(2) is the meaning originally intended.** 

**20 In**  Pipe, supra **at 530, and again in** Cain I, supra **at 524, we referred to this as anatomical loss or its**  **equivalent.**

25**Defendants’ approach would require us to ignore the statutory drafters’ and enactors’ turn-of-the-twentieth**  **century understanding of the common and approved meaning of “loss” in favor of a purportedly different contemporary**  **understanding, divorced from its roots. This we cannot do. We are not free to substitute any other nonstatutory**  **definition of a word or term for the meaning it indisputably had in 1912, and has maintained for almost a**  **century. This duty traces to the simple notion that we are to construe a statute “in the light of the circumstances**  **existing at the date of its enactment, not in the light of subsequent developments. . . . ‘The words of a statute must**  **be taken in the sense in which they were understood at the time when the statute was enacted.’”**  Wayne Co Bd of Rd Comm’rs v Wayne Co Clerk **, 293 Mich 229, 235-236; 291 NW 879 (1940), quoting 25 RCL, § 215, p 959. We therefore hold to**  **the original meaning of the word “loss” in the specific loss provisions: it does not require severance and there**  **can be a “loss” where the claimant suffers the loss of usefulness of the member.**  **In addition, we conclude that the WCAC properly applied the “uncorrected” standard. We discussed in**  Cain I, supra **at 521-523, the propriety of applying the “uncorrected” standard to specific loss claims and the** 

26**“corrected” standard to total and permanent disability claims. We reaffirm that rule today.**  **The WCAC found the damage to Mr. Cain’s left leg “equated with anatomical loss and that the limb retains no**  **substantial utility.” The WCAC’s factual finding is, in essence, that he lost the usefulness of his leg. Because**  **that factual finding is supported by competent evidence in the record, it must be affirmed.**  Mudel, supra **at 701. The Court of Appeals erred when it grafted a loss of industrial**  **use standard onto the factual findings of the administrative tribunal. Nonetheless, it reached the**  **correct result with regard to plaintiff’s benefit eligibility. Accordingly, plaintiff is eligible for**  **specific loss benefits for the loss of his left leg.**
**ANALYSIS: TOTAL AND PERMANENT DISABILITY We next turn to analyze whether the WCAC correctly**  **allowed plaintiff benefits under th e total and permanent**  **disability provisions, MCL 418.361(3). Our task in interpreting the Legislature’s work is, if possible, to**  **read the seven eligibility requirements in § 361(3) so as to read none of them out or as an unnecessary duplication**  **of another. In particular, we must endeavor to harmonize the three provisions concerning legs and to read them in a**  **way that does not make any of the language surplusage.** Jenkins v Patel **, 471 Mich 158, 167; 684 NW2d 346 (2004);** 27State Farm Fire & Cas Co v Old Republic Ins Co **, 466 Mich 142, 146; 644 NW2d 715 (2002). In short, we read the words**  **in a statute together, to harmonize the meaning of the clauses and give effect to the whole.**  G C Timmis & Co v Guardian Alarm Co **, 468 Mich 416, 421; 662 NW2d 710 (2003). Defendants argue that we cannot construe “[l]oss” in §**  **361(3)(b) to mean less than amputation because then cases of lost industrial use would fall under both § 361(3)(b)**  **and § 361(3)(g), rendering the latter surplusage. We disagree. We find the proper construction of the word**  **“[l]oss” in § 361(3)(b) is that it has the same meaning given it in § 361(2).**  **21 This conclusion is unsurprising, we**  **believe, given the juxtaposition of §§ 361(2) and 361(3), which is itself a compelling reason to give them the same**  **meaning. See, e.g.,** Sibley v Smith **, 2 Mich 487, 491 (1853). Furthermore, doing so, as we will explain, causes**  **no part of § 361(3) to be duplicative or nugatory. Dealing with § 361(3)(b) first, we find that using this definition**  **of loss means that benefits are payable under this section not only when there is anatomical loss, but also when the**  **limbs have no practical usefulness. Section 361(3)(g), on the other hand, as we discussed in**  Cain I **, with its**

**21 We note that this meaning would also apply in §§**  **361(3)(c) and 361(3)(d).**

28**reference to permanent and total loss of industrial use, calls the fact-finder to look to wage-earning capacity and**  **the injured worker’s ability to function in industry. As is apparent, these words demand something distinct from**  **§ 361(3)(b)’s simple inquiry regarding whether the legs or feet are amputated or have no practical usefulness. This**  **means that what is covered under § 361(3)(b) may not be covered under § 361(3)(g).**  **Stated more formally, §§ 361(3)(b) and 361(3)(g) cover different things and**  **defining loss as we have here does not make either provision nugatory. An example may make this distinction**  **clearer. If the legs are rendered useless but can be braced so as to make the performance of the job possible,**  **there has been loss under § 361(3)(b) but no loss of industrial use under § 361(3)(g). This worker, indeed like**  **Mr. Cain, would under this reading qualify for total and permanent disability benefits under § 361(3)(b) but not**  **§ 361(3)(g). Conversely, a worker whose legs have basic function, i.e., are practically useful, but whose legs have**  **no industrial use even if braced (such as a ballerina), would qualify under § 361(3)(g) but not § 361(3)(b).**  **These examples limn that the “corrected” standard does not apply to § 361(3)(b), unlike § 361(3)(g). The reason**  **is, as we explained in** Cain I **, that § 361(3)(g), with its utilization of permanent and total loss language, compels a**  29**conclusion that if the condition is correctable, it is not permanent and total.**  Cain I, supra **at 519-520. In fact, when this language appears elsewhere in § 361(3), such as**  **in §§ 361(3)(a) and 361(3)(e), the doctrine of correctability also applies. Because there is no such**  **permanent and total loss triggering language in § 361(3)(b), it follows that the requirement of looking to**  **correctability is absent. 22**  **In sum, Mr. Cain has clearly suffered the loss of his amputated right leg and the WCAC found that his left leg**  **has “no substantial utility.” That is, his leg has no practical usefulness. Thus, he has suffered a “loss of**  **both legs” and falls within § 361(3)(b), qualifying for an award of total and permanent disability benefits under that**  **provision. 23**  **Accordingly, the WCAC and the Court of Appeals decisions are affirmed.**  **24**

**22 Again, §§ 361(3)(c) and 361(3)(d) are similarly**  **worded.**

**23 We have read the concurrence and, to preclude**  **potential confusion, only note that its conclusion is identical to ours.** 

**24 We also conclude that, although the WCAC made an**  **error of law in its interpretation of § 361(3)(b), it was properly within its scope on remand to reach legal**  **conclusions based on its reassessment of the facts.** Modreski v Gen Motors Corp **, 417 Mich 323; 337 NW2d 231 (1983). While the WCAC was precluded from reaching a**  **(continued...)** 30**CONCLUSION In conclusion, we find that Mr. Cain has suffered the**  **specific loss of his left leg under MCL 418.361(2) and that he qualifies for an award of total and permanent disability**  **benefits under MCL 418.361(3)(b). Therefore, we affirm the decisions of the Court of Appeals and the WCAC.**  **Clifford W. Taylor Michael F. Cavanagh**  **Maura D. Corrigan Robert P. Young, Jr.**  **Stephen J. Markman**

**(...continued) decision contrary to that of this Court,**  Cain I **did not address the question whether plaintiff had suffered total**  **and permanent disability under § 361(3)(b). Although the WCAC’s determination on remand that he met the requirements**  **of § 361(3)(b) had the opposite outcome from its initial determination that he was not qualified under § 361(3)(g),**  **its finding was based on a different legal theory. We conclude that it did not err in addressing legal questions**  **raised by its new factual determination.** 31**_______________________________**

**_______________________________ S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**SCOTT M. CAIN, Plaintiff-Appellee,** 

**v No. 125111**  **AFTER REMAND WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,**  **Defendants-Appellants, and**  **SECOND INJURY FUND, Defendant-Appellee.** 

**SCOTT M. CAIN, Plaintiff-Appellee,** 

**v No. 125180**  **AFTER REMAND WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,**  **Defendants-Appellees, and**  **SECOND INJURY FUND, Defendant-Appellant.** 

**AFTER REMAND WEAVER, J. (concurring).** **I concur in the result of the majority opinion and its conclusions that plaintiff suffered a specific loss of his**  **left leg under MCL 418.361(2)(k) and that he qualifies for an award of total and permanent disability benefits under**  **MCL 418.361(3)(b). The word “loss,” as used in both subsections of the statute, includes**  **not only amputation but also those situations in which there is a loss of the**  **usefulness of the limb or member. 1**  **As noted by Chief Justice Taylor, the Worker’s Compensation Appellate**  **Commission (WCAC) essentially found that on these facts,**  **plaintiff lost the usefulness of his left leg and that he accordingly was entitled to specific loss benefits for the**  **loss of his left leg under MCL 418.361(2)(k).** Ante **at 27­ 28.**  **There is competent evidence to support the WCAC’s factual finding and we must defer to the WCAC on this**  **finding.** Mudel v Great Atlantic & Pacific Tea Co, **462 Mich 691, 703; 614 NW2d 607 (2000). Further, plaintiff has**  **suffered a “[l]oss of both legs” under MCL 418.361(3)(b) because his right leg has been amputated and he has lost**  **the usefulness of his left leg. Consequently, he is entitled to total and permanent disability benefits.** 

**1 Dictionary definitions of the word “loss” include:**  **“failure to preserve or maintain” and “destruction, ruin.”** Random House Webster’s New College Dictionary **(1997).**

2**Therefore, I agree that the decisions of the WCAC and Court of Appeals should be affirmed.**  **2 Elizabeth A. Weaver**  **Marilyn Kelly**

**2 While I agree with some of the basic conclusions of**  **the majority, as should be evident from the fact that I am concurring separately, I do not sign on to all of the**  **lengthy analysis on which the majority relies to support its conclusions.** 

3